Jack Smith appeals Judge Cannon decision to throw out Trump case

Special counsel Jack Smith urged an appeals court Monday to reverse U.S. District Judge Aileen M. Cannon’s dismissal of Donald Trump’s classified-documents case, arguing that Attorney General Merrick Garland had clear authority to appoint Smith to lead the prosecution.

Smith wrote that Cannon ignored decades of precedent when she issued her stunning decision to toss out the entire indictment, in which she said Smith was wrongfully appointed and wielded too much power for someone who was not in a Senate-confirmed position.

The 60-page filing to the U.S. Court of Appeals for the 11th Circuit marks the latest salvo in what has become a contentious relationship between the special counsel and Cannon, who was nominated to the bench by Trump and confirmed just before he left office. In measured language, Smith insisted Cannon’s dismissal of Trump’s indictment trampled on decades of legal precedent and Justice Department practice regarding the appointment of special or independent prosecutors.

Cannon already has been reversed by the appeals court in this case – at a much earlier stage of the classified-documents investigation. After FBI agents retrieved scores of classified documents from Trump’s home, Cannon ruled against the Justice Department and imposed an outside legal expert to review some of the evidence. That move was roundly rejected and reversed by the 11th Circuit. Smith is now asking that same court to again intercede to put the case back on track.

Cannon’s ruling that Smith was unlawfully appointed halted what was considered by many lawyers to be the strongest criminal case against the former president as he again seeks the White House. Two other indictments against Trump are also stalled. He was convicted in May in a fourth criminal case for falsifying business records related to hush money payments in 2016. He is scheduled for sentencing next month, though his lawyers have asked for a delay.

For decades, Smith argued in Monday’s court filing, attorneys general have appointed special counsels, and court after court has upheld those appointments as valid.

Cannon’s decision “conflicts with an otherwise unbroken course of decisions, including by the Supreme Court … and it is at odds with widespread and long-standing appointment practices in the Department of Justice and across the government,” Smith wrote.

Trump’s reply to the appeal is due in about 30 days. His campaign issued a statement Monday saying the higher court should uphold Cannon’s ruling.

“As we move forward in Uniting our Nation, not only should the dismissal of the Lawless Indictment in Florida be affirmed, but be immediately joined by a dismissal of ALL the Witch Hunts,” Trump campaign spokesman Steven Cheung said in a statement. “Let us come together to END all Weaponization of our Justice System, and Make America Great Again!”

Cannon’s July 15 ruling was a shocking rebuke to a historic set of charges, in which the former president was accused of repeatedly breaking the law by allegedly stashing classified documents at his Mar-a-Lago home and obstructing government efforts to retrieve them.

Smith quickly vowed to appeal. He filed his legal argument one day before the Tuesday deadline set by the federal appeals court in Atlanta – the first step in a lengthy process that the government must take in its quest to resurrect the case.

If Trump wins the 2024 election and again becomes president, he could pressure his Justice Department to drop the appeals effort. Continuing would mean pitting his Justice Department lawyers against his personal defense attorneys in court.

But if Trump loses, the appeals process probably would go forward under the next administration, and the question of whether Smith was lawfully appointed could be decided by the Supreme Court. If the justices conclude that Cannon is wrong and that Smith was lawfully appointed, Smith could continue with his prosecution of Trump in Florida.

Cannon’s decision is only binding in the South Florida district in which she serves. It does not affect Smith’s separate prosecution of Trump in D.C. on election interference charges. That case has been on hold since last year and may be significantly narrowed by a Supreme Court decision that former presidents have broad criminal immunity for official actions. A hearing is scheduled next week for the judge in that case, Tanya S. Chutkan, to begin deciding which parts of the indictment can move forward.

In her ruling on the classified-documents case, Cannon drew distinctions between appointments of independent counsels – a predecessor to what is now known as a special counsel – and Garland’s appointment of Smith under the latter title.

But Smith largely dismissed that concern as superficial and said the mechanism that has allowed for independent-counsel-type appointments in the past is largely the same as in the modern era.

He argued that from the president of the Confederacy, Jefferson Davis, to the only American president to resign under threat of impeachment, Richard M. Nixon, U.S. courts have allowed for special or independent prosecutors.

“The district court erroneously regarded this history as ‘spotty’ or ‘ad hoc,’ giving undue emphasis to superficial differences in the appointments and roles of certain special and independent counsels,” the prosecutor wrote.

Smith criticized Cannon’s decision to disregard what the Supreme Court said about the appointment of such prosecutors in its U.S. v. Nixon ruling.

In 1974, the high court unanimously ruled that Nixon needed to hand over to a federal court tape recordings and other subpoenaed materials related to the Watergate scandal. In that opinion, the justices wrote that Congress has given the attorney general the authority to appoint a special prosecutor – one of the earlier variations of a special counsel – to handle key duties of the department.

Cannon, however, concluded that part of the ruling was not central to the decision and did not dictate the constitutionality of special counsels. Smith wrote that Cannon erred when making that decision, noting that the justices who decided the Nixon case did not include any caveat language to suggest their assertion on special counsels did not have legal muscle.

That seminal case, Smith said, “therefore binds this Court, just as it did the district court, and reversal is warranted on that ground alone.”

If allowed to stand, the consequences of Cannon’s decision could extend far beyond the appointment of special counsels to many other types of government officials, Smith argued.

“The district court’s rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch,” Smith wrote.